Outlaw Arizona: State Seceding from the United States and Humanity
by Roberto Cintli Rodriguez
Over the past several years, Arizona has unquestionably become synonymous with reactionary politics and reactionary anti-Mexican, anti-immigrant and anti-indigenous legislation. Previously, Arizona was simply viewed as a place where thousands of migrants were dying in the Sonora desert, this while also being a Mecca for extremist and racial supremacist militia movements. Truthfully, Arizona’s image has been further tarnished during the past few years by being home to Operation Streamline in Tucson. In this process, approximately 70 migrants are hauled into Tucson’s federal courtroom every day, where they are in effect, charged, tried, convicted and sentenced to a for-profit Corrections Corporation of America private prison. All of this takes place in one hour. Arizona is also home to Sheriff Joe Arpaio, a lawman whose racial profiling of entire neighborhoods is so egregious that his 287(g) immigration agreement for the streets of Maricopa County with the federal government were pulled out from under him, though that has not stopped his mass-dragnet raids.
And yet, it is the 2010-2011 legislative attacks that have put Arizona on the map. These attacks have come fast and furious and because of the hate environment that accompanies them, they can arguably be labeled as hate legislation and even hate crimes unto themselves. They can also appropriately be termed “anti-laws” because rather than extend civil and human rights protections to all, these so-called laws do the exact opposite; they discriminatorily limit people’s rights.
The legislative proposals are so many that many of us in Arizona want to politically refrain from getting lost in the minutiae of every bill – because as soon as we defeat one of them, another and more virulent one, makes its way to the governor’s desk for her signature. Fortunately, the most extremist and worst of them – the racial profiling SB 1070 and anti-Ethnic Studies HB 2281 – may be mired in years of litigation. Despite this, we know that each and everyone of these bills have to be defeated.
For many of us on the front lines – after a series of protests, rallies, marches, walks, vigils and runs through the inhospitable desert – we are now also shifting our response to the national and international arenas. We are aware that the full-scale assault on the Mexican population of Arizona is actually nationwide in its scope, and it is not limited to Mexicans. The attacks have spread to others who conjure up the same hate and fear levied against brown peoples, whether they are migrants or peoples indigenous to these lands. Because the assaults are coordinated and nationwide and because the federal government is often also complicit in these statewide attacks or is unable to ward them off, the response is now focusing on filing complaints before the U.S. Commission on Civil Rights. Many of us are looking into calling for Congressional hearings into these legislative assaults. The strategy is also to look outside of the state and even outside of the federal government for relief: we have begun to explore the process of initiating a court case(s) before the Organization of American States Human Rights Commission and/or possibly the United Nations Human Rights Council.
To do so requires an examination of the onslaught of bills proposed in 2010 and 2011. A cursory analysis of various international human rights laws, declarations and conventions tell us that virtually every one of those Arizona bills appear extralegal and to be in clear violation of international human rights laws and conventions.
More than likely, these bills may also be in violation of the 1848 Treaty of Guadalupe-Hidalgo, a Treaty that ended the war by the United States against Mexico (1846-1848). The importance of the treaty, akin to all treaties, is that it is a live document. As such, it is supposed to protect the rights of Mexican peoples and their descendants in what is today the United States. While it has long been asserted that the cultural rights of Mexicans are protected by the treaty, there has yet to be a test case based on this assertion. The Arizona situation may yet give rise to such a challenge. The research on this topic still needs to be done. The bills, amongst many more in question, include:
SB 1070: This 2010 [signed] bill virtually mandates local police to inquire the legal status of suspects based on “reasonable suspicion.” The bill permits citizens to sue police officers if they feel that they are not pursuing this mandate. HB 2281: This 2010 [signed] bill makes the teaching of ethnic studies in Arizona illegal. SB 1097: This 2011 bill forces children to identify the legal status of their parents and also punishes school personnel if they don’t facilitate this identification process. HB 2561/SB 1308 and HB 2562/SB 1309: These 2011 proposed bills call for the nullification of birthright citizenship and the 14th amendment, and the creation of two types of birth certificates one for citizens and one for those whose citizenship of the parents cannot be proven. SB 1490: This bill requires food service workers to provide proof of citizenship. SB 1406: This bill authorizes the creation of a wall along the US-Mexico border using private funding and inmate labor. SB1405: This bill requires hospitals to check for legal documentation before accepting patients. SB 1465: This bill would prohibit the use of consular cards as official ID. SB 1611: This so-called 2011 omnibus immigration bill collapses many prohibitions into one piece of legislation. Among its many features, it prohibits students from enrolling in k-12 schools without proof of U.S. birth certificates or naturalization documents. It does the same for community colleges. It also permits the state housing authority to evict all residents of a public housing unit if one of the occupants is undocumented. “Driving while undocumented” would hereafter be a crime and the driver would lose the vehicle being driven. It also forces companies to use E-Verify or lose their business license. SCR 1006: This resolution would proclaim, contrary to all available data, the border as lawless and crime-ridden. It would call for further militarization of the border. SB 1117/HB 2537: This bill would authorize Senate President Russell Pearce and House Speaker Kirk Adams the unlimited power to use state funds to defend SB 1070.
It is not hyperbole to say that each proposed piece of legislation gets more extremist than the previous one. There are no checks and balances in the Arizona state legislature. This means that more outrageous and dehumanizing bills will continue streaming forth as long as the legislature and the governor are in the hands of a hostile Republican Party. Leilani Clark, one of the leading political activists in Tucson, recently described the political climate of Arizona as producing: “SB fill-in-the blank” legislation. In that sense, it is not the bills that should cause us outrage, but rather the general climate of government-sponsored hate and dehumanization that will continue to produce more bills until there is a change to the political equation in Arizona. Perhaps anticipating lawsuits or other court action, legislators have also proposed two even more mind-boggling laws: SB 1443: This 2011 legislation creates a joint 12-member legislative commission to examine which federal laws are applicable to Arizona. The commission would determine which federal laws are unconstitutional. In effect, this is a form of secession from the United States. SCR 1010: This 2011 legislation exempts Arizona from international laws, most of which concern themselves with the protection of peoples’ inalienable human rights.
In a warped sense, these two proposed laws make complete sense to extremist Arizona legislators; virtually all international human rights treaties and conventions are designed so that larger hostile governments, peoples and nations do not forcefully, politically or culturally swallow up smaller nations, peoples and cultures. Apparently, the extremist state legislators seem to believe that with the enactment of these two laws, they will be immune and exempt from federal and international human rights laws and be beyond their reach and jurisdiction.
Because of the number of bills that continue to be proposed, here, I will concentrate primarily on HB 2281 (and to a lesser extent, the immigration-related laws) to show how it is in violation of nearly all international human rights laws, laws which are designed to protect the rights of peoples from discriminatory treatment and forced assimilation, and to protect their rights to education, history, language, identity and culture.
In April of 2010, five UN special rapporteurs denounced both the racial profiling measure SB 1070, and HB 2281 as potentially subjecting immigrants, minorities and Indigenous peoples to “discriminatory treatment.” About both bills, they wrote: “A disturbing pattern of legislative activity hostile to ethnic minorities and immigrants has been established with the adoption of an immigration law that may allow for police action targeting individuals on the basis of their perceived ethnic origin, and a law that suppresses school programs featuring the histories and cultures of ethnic minorities.” In regards to HB 2281, they specifically wrote: “Such law and attitude are at odds with the State’s responsibility to respect the right of everyone to have access to his or her own cultural and linguistic heritage and to participate in cultural life. Everyone has the right to seek and develop cultural knowledge and to know and understand his or her own culture and that of others through education and information.” They added: “States are obligated to not only eradicate racial discrimination, but also to promote a social and political environment conducive to respect for ethnic and cultural diversity.” That notwithstanding, seven months later, in declaring the Tucson Unified School District as out-of-compliance, outgoing school superintendent Tom Horne ignored the UN report and declared on Dec. 30, 2010 (revealed in a press conference shortly before noon on Jan 3, 2011) that the Mexican American Studies-TUSD curriculum and its books are out-of-compliance based on the four tenets of the HB 2281 law below. He alleges that MAS-TUSD classes:
- Promote the overthrow of the United States Government.
- Promote resentment toward a race or class of people.
- Are designed primarily for pupils of a particular ethnic group.
- Advocate ethnic solidarity instead of the treatment of pupils as individuals.
According to HB 2281, the only way that TUSD can come into compliance is elimination. Tom Horne, who self-proclaims to be inspired by Martin Luther King Jr.’s philosophy, is now the state’s attorney general (as of noon of Jan 3, 2011), and is in charge of making that determination. Despite rulings by the state superintendent of schools, the state’s attorney general or Arizona courts, in examining the various human rights treaties and conventions, HB 2281 appears first and foremost to be in violation of the following human rights declarations, treaties and conventions.
The 1948 UN Declaration of Human Rights
This document, in effect, is the basis for the succeeding documents, most of which appear to safeguard the right of peoples to education. For example:
Article 26. (1) Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
(2) Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
(3) Parents have a prior right to choose the kind of education that shall be given to their children.
The right of all peoples and individuals to education, particularly in this foundational human rights document, appears to be fairly clear, though it should be noted that all human beings are born with inherent, inalienable and universal rights. Rights are not granted by governments, though they can affirm them and guarantee them. The UN describes them in this manner: Human rights are inherent; we are simply born with them and they belong to each of us as a result of our common humanity. Human rights are not owned by select people or given as a gift. They are inalienable; individuals cannot give them up and they cannot be taken away — even if governments do not recognize or protect them. They are universal; they are held by all people, everywhere – regardless of age, sex, race, religion, nationality, income level or any other status or condition in life. Human rights belong to each and every one of us equally.
The UN Convention on Rights of the Child
HB 2281 appears to be in clear violation of this 1989 convention: Specifically, it appears to violate:
- States Parties agree that the education of the child shall be directed to: ( c ) “The development of respect for the child's parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own.”
Article 30: In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practice his or her own religion, or to use his or her own language.
The introduction to the convention states:
These basic standards—also called human rights—set minimum entitlements and freedoms that should be respected by governments. They are founded on respect for the dignity and worth of each individual, regardless of race, colour, gender, language, religion, opinions, origins, wealth, birth status or ability and therefore apply to every human being everywhere. With these rights comes the obligation on both governments and individuals not to infringe on the parallel rights of others. Under this convention, cultural identity, which appears to be in question per HB 2281, appears to be affirmed. And in Arizona, the concept of parallel rights seems to be unheard of and non-existent.
UN Declaration on the Rights of Indigenous Peoples, 2007
HB 2281 appears to be in complete violation of the spirit of this 2007 document. In particular:
The attempt to prohibit the teaching of ethnic studies – specifically Mexican American Studies – is nothing short of cultural genocide – which can be defined as forced assimilation and destruction of culture. Status of Mexican Americans.
Article 8: 1. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture. Article 13: 1. Indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons.
Virtually every section in the 2007 declaration appears to address all the above-hostile Arizona laws. In invoking the UN Declaration on the Rights of Indigenous peoples (2007), perhaps the defense of Arizona state legislators will be to make the claim that Mexican Americans are not Indigenous peoples. Tupak Enrique Acosta, of Tonatierra in Phoenix and has worked on such issues for over a generation at the United Nations, has indicated that he welcomes such a challenge, affirming that Mexican Americans are in fact Indigenous peoples. He is one of the organizers that spent decades fighting to bring about the 2007 Indigenous Declaration before the UN.
1948 American Declaration of the Rights of Man
HB 2281 appears to be in clear violation of this document from the Organization of American States.From the preamble: Since culture is the highest social and historical expression of that spiritual development, it is the duty of man to preserve, practice and foster culture by every means within his power. And, since moral conduct constitutes the noblest flowering of culture, it is the duty of every man always to hold it in high respect. A perusal of this declaration can lead one to conclude that HB 2281 may also be in violation of several of the articles, including articles II, IV, V, XII, XIII, XVII, XXII. In particular, Article IV reads: "Every person has the right to freedom of investigation, of opinion, and of the expression and dissemination of ideas, by any medium whatsoever." It appears that because Horne has singled out several books in the Mexican American Studies-Tucson Unified School District curriculum, HB 2281 is in direct violation of this particular article and the declaration as a whole. 1969 American Convention on Human Rights.
HB 2281 appears to be in direct violation of Part 1, Chapter II (Civil and Political Rights) Article 13. Freedom of Thought and Expression. This includes several sections, including sec. 1:“Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice.” HB 2281, the anti-ethnic studies law, also appears to be in violation of several other sections, including section 16 that protects the right of association and the right to culture.
International Convention on the Elimination of All Forms of Racial Discrimination
Once again, HB 2281 appears to be in clear violation of the International Convention on the Elimination of All Forms of Racial Discrimination, which the United States ratified in 1994. Specifically, Article 1 & 7:
1. In this Convention, the term "racial discrimination" shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.
Article 7 States Parties undertake to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnical groups, as well as to propagating the purposes and principles of the Charter of the United Nations, the Universal Declaration of Human Rights, the United Nations Declaration on the Elimination of All Forms of Racial Discrimination, and this Convention.
HB 2281, particularly because it singles out Mexican American Studies, rather than promote tolerance, friendship and understanding, has created a hostile climate of prejudice against the Mexican and Mexican American population throughout the state. By definition, Mexican Americans are not immigrants, yet they too receive harsh treatment based on hostility toward “illegal immigration.”
International Covenant on Civil and Political Rights.
Under this covenant (1966 & 1976), HB 2281 appears to be in violation of Articles 18, 19, 20, 26 and 27. These articles protect the right to freedom of thought, opinions, beliefs and conscience… and the right to teach these beliefs. Article 27, in particular is presented here:
Article 27. In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. In addition, articles 9 and 16 of this covenant, which was signed and ratified by the United States, protects migrant workers against arbitrary detention. This appears to be applicable to SB 1070 and Arizona’s other anti-immigrant legislation.
Article 27 appears to have been written specifically to rebut HB 2281. One of Horne’s primary charges is that the MAS-TUSD curriculum was created specifically for Mexican Americans. It is a circular charge; it is illegal according to him, because he created a law that prohibits creating curriculum for specific groups, i.e. Mexican Americans. The charge in fact is false. However, even if it were true, classes are open to all, and teaching classes about specific groups is neither new, nor unusual, and least of all, illegal. An examination of the above international human rights declarations, treaties and conventions would seem to buttress why Arizona legislators would want to make themselves immune and exempt from international law. No law, declaration or covenant examined here appears to support these rogue legislators. To be determined is which will be the appropriate legal forum and the appropriate legal course by which to proceed according to the legal venue chosen.
The 1848 Treaty of Guadalupe Hidalgo
What is uncertain is whether the 1848 Treaty of Guadalupe Hidalgo will or needs to be invoked to prove that the state of Arizona is in violation of international law in its treatment of the Mexican, Mexican-American and Spanish-speaking populations within its jurisdiction. For some, invoking the treaty may be unnecessary. In addition to the five UN rapporteurs, both Human Rights Watch and Amnesty International issued reports in 2010 affirming that Arizona is in violation of several international treaties, including the 1994 International Convention on the Elimination of All Forms of Racial Discrimination.
For others, the objective of invoking the treaty may not be to prove these violations per se, but rather, to affirm two other equally important points: that Mexican Americans are treaty peoples or peoples covered by a treaty, in this case, the Treaty of Guadalupe-Hidalgo and that the treaty is a live document. The objective of making this point in an international court would be to prove that in violating the rights of the Mexican-Mexican American and Spanish-speaking populations of Arizona – they have been singled out for discriminatory behavior and persecution, and thus a clear violation of the Treaty of Guadalupe-Hidalgo.
This treaty has always been a central and focal point for Chicano and Chicana activists, beginning in the 1960s. Many have asserted that the cultural rights of Mexican-origin peoples are spelled out and guaranteed by the 1848 Treaty of Guadalupe Hidalgo – the treaty that was signed under duress (the illegal 1846-1848 war against Mexico). The truth is, we are born with the rights of all human beings, including the right to history, language, culture and identity. Unless people expressly agree to give up their rights on a legal document or treaty, they keep their rights. In American Indian law, this is known as the “reserved rights doctrine.” There is no reason not to read the Treaty of Guadalupe-Hidalgo in the same fashion: The people keep their rights unless they signed them away. There appears to be no such document in which Indigenous and/or Mexicans signed their rights away.
Separate from an action or a complaint or case before the OAS or UN, there in fact is an active lawsuit related to HB 2281: Acosta v Arizona. This lawsuit was filed on behalf of 11 educators employed by MAS-TUSD. They primarily charge that HB 2281 violates their 1st amendment rights (the right to teach freely) and their 14th amendment rights to equal protection under the law because MAS-TUSD was singled out. The lawsuit is also predicated on the idea that while TUSD states that MAS-TUSD is in compliance or will be in compliance with HB 2281, the educators counter by stating that they do not have to comply with an unconstitutional law. This lawsuit, as was filed, does not address the rights of students or the rights of Mexican American peoples, etc. For that reason, the issue of international human rights or the Treaty will not surface in this trial and thus, a second legal front in international venues should compliment this lawsuit.
The root of the conflict regarding HB 2281 involves the insistence by former superintendant of state schools, Tom Horne (now state attorney general); that Mexican American Studies preaches un-American values and that it does not emphasize the Greco-Roman roots of Western Civilization. In that sense, he is half-correct. The philosophical foundation for MAS-TUSD is rooted in maiz culture, not Greco-Roman culture. Maiz culture is part of a 7,000-year culture that is completely Indigenous to the American continent. For example, Maria Federico Brummer’s classes begin this way, by quoting the Maya philosophy of In Lak Ech:
In Lak Ech—
Tu eres mi otro yo—
You are my other self.
I am you and you are me.
If I hurt you, I hurt myself.
If I hate you, I hate myself.
If I love and respect you,
I love and respect myself.
Attacking MAS-TUSD as un-American, while insisting that its teachers preach hate, invites a legal challenge as to the meaning of what constitutes American versus un-American. In fact, because HB 2281 attacks ethnic studies, that also invites a legal challenge as to what constitutes “ethnic studies” and “ethnic solidarity.” The Acosta v. Arizona lawsuit will undoubtedly tackle some of these issues. What these charges point to is that indeed, there is a civilizational struggle at play in Arizona. Mexican American Studies-TUSD students graduate at a phenomenal 97.5% clip. Horne has repeatedly stated that these rates do not matter to him. What he cares about is the content. In effect, what Horne preaches is that knowledge that emanates from Europe is acceptable for Arizona students, but that knowledge that emanates from this continent is not. Whether the lawsuit tackles this issue is to be seen, but minimally, it absolutely lends itself to a legal challenge in international courts or commissions. There, the issue of what is American versus un-American takes on a different context, though at the core of a challenge in such a forum(s) will be not so much what is American vs. un-American, but rather, whether Mexican Americans have the right to education, language, culture, history and identity. Those in Arizona that are fighting to defend Mexican American Studies are confident of the answer. And yet, we do not see it is a Mexican American issue, but an issue that attacks the very precept of education. To be sure, it is not a K-12 issue as John Huppenthal, the current superintendent of schools, actively campaigned against “La Raza,” and vowed to eliminate Ethnic Studies at the University level also. The minute governments begin to legislate what can be taught and what is acceptable knowledge, means a degradation of the very idea of education. That is what is at stake in Arizona. And, akin to SB 1070, there are many forces that would love to export HB 2281 to other states.
Conversely, the only thing that should be exported is MAS and its successful curriculum nationwide.
Roberto Dr. Cintli Rodriguez, a long-time journalist-columnist and a professor at the University of Arizona, was one of 15 people detained and arrested in May 2010 in defense of Ethnic Studies. He also took part in the 110 mile-run from Tucson to Phoenix in 115-degree heat in 2009, also in defense of Ethnic Studies. He writes for The Guardian UK and serves on the MAS-TUSD Community Advisory Board.
Original from Professor Harry Gamboa copyright.